Yesterday in Barnes-Wallace v. City of San Diego, (9th Cir., Dec. 18, 2006), the U.S. 9th Circuit Court of Appeals certified three questions to the California Supreme Court in a case challenging constitutionality of the City of San Diego's leasing, at nominal rentals, to the Boy Scouts city property on which the Scouts operate a campground and aquatic center. The facilities are used exclusively, or on a preferred basis, by Scout members. However the Scouts requires its members to affirm a belief in God. (It also excludes gays and lesbians as Scout members.)
Seeking to avoid deciding a federal constitutional question by relying on state constitutional law, the 9th Circuit asked the California high court to determine (1) whether the leases interfere with the free exercise and enjoyment of religion by granting preference for a religious organization in violation of the No Preference Clause in Art. I, Sec. 4 of the California Constitution; (2) whether under Art. XVI, Sec. 5 of the California Constitution, the leases amount to "aid", and (3) if so, whether the leases aid a "creed" or "sectarian purpose" in violation of the state constitution's "No Aid" Clause.
Judge Kleinfeld dissented, arguing that the case should be dismissed because plaintiffs lack standing to sue. He said that plaintiffs have never tried to use the facilities, and do not wish to do so while the Boy Scouts are there.
Yesterday's Bay City News Wire reported on the court's decision.
